Erasmus Honours Law College visit to the Court of Justice of the European Union (Part II)

In: Court of Justice of the European Union|European Union

25 May 2015

On October 16, the second year Bachelor Erasmus Honours Law College students travelled to the Court of Justice of the European Union (“ECJ”) in Luxembourg to visit a preliminary ruling at the ECJ. Additionally, the students spoke to Ms Van Engelen, staff worker for Ms. Prechal (for the Dutch judge of the Court of Justice), and to Judge Van der Woude, who is the Dutch judge of the General Court. In this blogpost, I will focus on one of the topics Judge Van der Woude discussed.

Judge Van der Woude mentioned various types of most reoccurring cases he encounters at the General Court. One category of cases that reoccurs quite often concerns sanctions.

He started off with the policy of the European Commission on placing sanctions on individuals and countries. As he explained, the European Commission rather frequently sanctions individuals without enough evidence, as the European Commission often only finds out about suspicious behaviour via informants. This practice raises some legal questions.

Firstly, the main reason for the Commission to withhold evidence, is their informants’ safety. However, in case of annulment of such a decision by the Court, it would imply that the European Commission is left empty-handed, since the Court would have to rule that the individual should not have been sanctioned, due to unsufficient evidence. If this would continue to occur, the European Commission might have to consider whether or not the secrecy of the information from informants should be of such high value. On the other hand, if the Court was to allow sanctioning individuals without the European Commission presenting evidence, this would be a violation of the principle of legality. This would be a disgrace to justice, because the Commission would end up sanctioning individuals without any evidence and any grounds needed. This could lead to sanctioning arbitrarily, which could not be the intention of the European Commission either.

Secondly, Mr. Van der Woude indicated that he personally disagrees with the policy of the Commission on sanctioning states that have policies the EU disagrees with. On the long term, the EU could create much hostility, as increasingly more states feel offended by the sanctions. However, a judge is not the right person to examine the policy of the European Commission. As a judge, he can only carry out the judicial control on whether the Commission has sufficient grounds and evidence to sanction. So however outspokenly he personally disagrees with the policy, it is not his place as a judge to declare whether this policy is in place or not. It is at this point that the judge clearly made a distinction between his professional and his personal opinion.

According to Mr. Van der Woude, at this point the European Parliament should get involved, Mr. Van der Woude said. The European Parliament has the ability to influence the policy of the Commission and the legislation that is made. It could, for instance, clarify when the General Court should accept the withholding of evidence, and when the Court should rule that no sanctions can be held against the individual due to lack of evidence. But in the end the question remained how to activate the Parliament in doing so.

Merel van de Poel

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